Saturday, August 23, 2003

[Tyler Cowen,
8/23/2003 04:07:22 AM]Kobe Bryant update Kobe's lawyer denies rumors of a settlement or plea bargain. "There's just no way we are going to settle this case," she says. Can she really mean that? Isn't that what you say when you are negotiating? I am not a lawyer (remember, I am the economist on this blog), but I do know that a criminal suit means the state is making the charge, even if the woman withdraws. Still, if the woman backed out, I would think the public pressure to drop the whole thing would be enormous.

and says in passing "Of course, a persuasive argument can be made that all three of those parentheticals are unnecessary too, but don't get me started."

Well, this does get me started. Why do lawyers think it's helpful to have obvious parentheticals like this? If there is only one Chanthasouxat in the case, people will realize that Chanthasouxat refers to that Chanthasouxat. If there is more than one, then you shouldn't call either Chanthasouxat. Likewise, there were exactly two defendants in the cases being considered in the opinion; who else would "Defendants" refer to?

Sometimes, a parenthetical like this may be helpful, for instance when one is introducing an acronym that's common enough to be worth using, but not so common that it's obvious. But often -- as here -- the abbreviation (whether a last name or "defendants") is so utterly obvious that I just see no reason at all to include it.

Grrr. Well, feels good to get that off my chest.

[Eugene Volokh,
8/22/2003 05:02:58 PM]Scaramouche: Just read Scaramouche by Rafael Sabatini (1921), and much enjoyed it; I highly recommend it. Here's a brief summary. I read the book on my laptop -- I downloaded it from Project Gutenberg, and then reformatted it with a nice font and wide margins -- and didn't feel that hurt the reading experience much (though I do wish the computer had been less bulky; I probably should have downloaded it to my Rocket eBook, but I didn't get around to it).

The network had argued the subtitle to Franken's book could trick some consumers into believing the book is associated with Fox. Fox, which trademarked "Fair and Balanced" as a slogan in 1998, was seeking an injunction barring publisher Penguin Group from using the cover or any other promotion including those words. . . .

The ruling opened the door for lawyers for Penguin and Franken to file a motion to dismiss the suit altogether. In addition to denying the injunction, the judge took direct aim at Fox for bringing the case.

"It is ironic that a media company, which should be protecting the First Amendment, is seeking to undermine it," Chin said.

The judge also said the "Fair and Balanced" trademark itself is weak, considering those words are used so frequently "in the context of the public marketplace." . . .

Franken's book went on sale nationally Thursday, moved up from its September rollout date because of publicity from the lawsuit. Penguin added 50,000 copies to the original run of 270,000 after the suit was filed.

On Friday, the book was listed at No. 2 on Amazon.com's best-seller list, behind "The South Beach Diet."

Fox spokesman Paul Schur said the network was considering its options, including appealing the judge's denial of an injunction. . . .

In this paper, I refute any claim that judicial review was invented in Marbury v. Madison, or that, because it is contrary to the original meaning of the Constitution, it must be justified by some nonoriginalist interpretive methodology. I will do so, not by discerning the shadowy and often counterfactual "intentions" of the founding generation, but by presenting as comprehensively as I can what the founders actually said during the constitutional convention, in state ratification conventions, and immediately after ratification. These statements, taken cumulatively, leave no doubt that the founders contemplated judicial nullification of legislation enacted by the states and by Congress.

In short, I shall demonstrate that the original meaning of the "judicial power" in Article III, included the power of judicial nullification. Many constitutional scholars who do not consider themselves to be originalists nevertheless acknowledge that originalism provides the starting point of constitutional interpretation or at least is a factor to be considered among others. It is equally important that these nonoriginalists are made aware of the substantial evidence that the original meaning of the "judicial power" included the power to nullify unconstitutional laws.

In an account first posted last week on the pro-Israel DAFKA.org and well-traveled since, 22-year-old Susanna Klein claimed U.C. Berkeley graduate student Abbas Kadhim proclaimed on Aug. 6 that "Protocols" was written by "Zionist Jews" and explains the state of the world today.

Kadhim, however, claimed it was Klein who steered classroom conversation toward "Protocols," which he told her most Iraqis believe to be true. Six of the eight students in the Arabic 15 class signed university documents supporting Kadhim's version of the day's events.

An official statement from the university this week concluded that, following a probe, "there appears to be no basis" to Klein's charge. Professor Daniel Boyarin, the dean of the Near Eastern studies department, took it further than that.

"This complaint has been investigated by the deans and they have concluded that it is a lie," Boyarin wrote in an e-mail to the Bulletin.

"...The department has no need to go anywhere from here, except perhaps to consider disciplinary action with respect to a slanderer."

In a lengthy interview with the Bulletin, Kadhim said he could not have possibly espoused a personal view on "Protocols" -- a czarist police-created forgery purporting to be the transcript of a cabal of Jews trying to take over the world. Why? He doesn't have one.

Perhaps the "Protocols" was written by Jews and perhaps it was written by Russian secret police, said Kadhim, adding that he hasn't done the research to know for sure.

"This is not my expertise, this is not my Ph.D. I am not a scholar of everything. I know some people say it is a forgery and some people say it is not, but it not my job or duty to know the details," said Kadhim, 37, a graduate student in Arabic and Islamic studies and a former Iraqi resistance fighter in the curtailed 1991 uprising against Saddam Hussein.

"I never in my life thought I would be asked about the 'Protocols.' It's unfair to ask me to have a precise opinion on it. I always thought it was enough to know both sides and be open to change. It is not responsible to endorse one view or the other without the full information."

Kadhim said he has attempted to locate both the "Protocols" and scholarly works purporting it to be a true document from U.C. libraries, but they are always missing or lost.

"I know it's a sensitive subject, but you only confirm others' suspicions when you lock away the books that don't agree with you," he said. . . . .

Two students contacted by the Bulletin independently confirmed much of Kadhim's version of the incident. Student Brett Woods, however, noted Kadhim admitted he is an anti-Zionist while interacting with Klein, and when discussing how Iraqis perceive the "Protocols," said, "This is what I was taught in Iraq."

Woods and student Brid Beeler said Kadhim never expressed his personal views of the "Protocols" or said anything anti-Semitic.

While Beeler said she knew the "Protocols" had been written "by czarists in Russia," Woods hadn't heard of the document prior to the incident. Following his subsequent research, he is unsure who wrote "Protocols": "czarist police or a few fanatical Jews."

Despite the university's conclusions and the testimony of her fellow students, Klein stands by her story.

Her classmates "want to believe [Kadhim]," she said. "It's not nice to think something outrageously bigoted might have happened in their class, it's not something they want to think about." . . .

Academic skepticism and openness to all viewpoints is all well and good, but I would have hoped that Mr. Kadhim indeed had a view on one of the great anti-Semitic frauds of our time, especially if indeed the fraud is indeed taught as true in some Arab countries, and one is teaching a class in which the culture of those countries arises. Still, the question was what was said in class, not what Kadhim believes; and the other witnesses' statements seem to support Kadhim's account more than Klein's (though of course it's conceivable that those statements are erroneous).

[M]en in masks dressed in dark fatigues poured into the bedroom where [Sam Mody, who owns a Super 8 motel just north of Paris, Illinois], his wife Rita and their 3-year-old daughter were sleeping. Machine guns drawn, they announced they were police and were there with a federal search warrant to look for explosives.

"I got dragged from the bed onto the floor," said Mody, who was cuffed with plastic ties before being led into the motel lobby.

In the next two hours of Aug. 1, agents searched for explosives and bomb-making chemicals in the couple's three-room apartment, along with a motel storage closet and laundry room.

In the end, an FBI special agent wrote that he took three things from the motel -- two pressure transducers and a receipt for [an] early morning guest -- a person Mody believes was a federal agent. The transducers, pencil-shaped devices that can measure the depth of a well based on pressure, had been in the motel's Lost and Found since a guest left them in a room in February, Mody said.

Before the agents left, they freed Mody and apologized, saying they had wrong information, Rita Mody said.

The situation is one that some say is growing all too common in a post-Sept. 11 era in which the USA Patriot Act was passed. The new law gives the government expanded powers in the war on terrorism.

Ed Yohnka, director of communications for the American Civil Liberties Union of Illinois, said that war is looking less like one on terrorism and more like a war on immigrants, dissidents and people who are different.

"The fact is, there is no question the Patriot Act gives the federal government and federal agents a far greater availability to do these kind of intrusive searches and with a less than demonstrative probable cause," he said. "The concern that one has is that innocent people will be caught up in this."

Sam Mody says he understands that since Sept. 11, threats need to be treated seriously. But he believes the agents based their search on a tip without fully investigating first.

"Today's situation, they have powers so that any information they get, they just rush," said Mody, sitting Monday near one door that was still off its hinges as a result of the raid. The motel's insurance company has denied coverage for the damage, based on a clause that excludes damage from federal searches.

Mody's biggest frustration has been trying to find out what provided probable cause for the search.

"Nobody's giving me an answer," said Mody, who immigrated from India to the United States six years ago. He has lived in Paris for the past 19 months, working as the motel's manager.

Neither the FBI nor a spokesman for the U.S. Attorney's office in Springfield, Ill., will discuss the case. . . .

This sounds like an unfortunate mistake, though it's not clear whether it's one where the FBI was negligent or where it acted properly. That no evidence was unconvered is not dispositive of this: Searches are generally supposed to be done based on probable cause, but the probable cause standard is intentionally set far below, say, proof beyond a reasonable doubt. Think of it as a requirement of 40% likelihood that the search will discover evidence of crime, rather than 95% likelihood that the defendant is guilty (a vast oversimplification, but let's go with it for now). If this is so, then there might be as much as a 60% likelihood that the search, even if based on probable cause, will not indeed uncover anything: Though our rule may be something like "better that ten guilty men go free than one innocent person go to jail," our legal system has intentionally not had the rule that "better that ten guilty men go free than one innocent person get searched." The lower burden on the government (probable cause rather than beyond a reasonable doubt) reflects that. I do think that the FBI should compensate Mody for the physical damage, and if Mody sues, they might also have to reveal some of the information that justified their warrant request, though I'm not expert enough to know how much (presumably some confidential information could be withheld, or produced solely to the judge). The mere unproductiveness of this particular search, however, doesn't say that much about whether the FBI erred.

But the one thing that seems pretty clear is that all this has nothing to do with the Patriot Act. This search would be equally permissible (or impermissible) without the Patriot Act. None of the search-related provisions of the Act, such as those related to roving wiretaps or slightly broadened Foreign Intelligence Surveillance Act searches, are relevant here. The search could have taken place just as easily had the Patriot Act never been enacted.

In fact, I corresponded with Ed Yohnka of the ACLU, and he reported to me that his remarks did not suggest that the Patriot Act was relevant here. He wrote me (and allowed me to quote this):

As I read the article, it is suggestive of a normal search, conducted as a result of probable cause. The reporter who contacted me asked questions about the Patrtiot Act, generally, not this specific incident. I had the impression that she had a particular incident in mind, but didn't know if it was implicated by the post-9/11 issues or not.

A subsequent message said:

I do want to make clear that the reporter did tell me about the Mody case, but we agreed simply to talk about the Patriot act generally, not the particulars of the case. My reference, as you no doubt sense, was really to quotes about the FISA searches.

So what we have here is the now-common Everything Is The Patriot Act's Fault media line, which Orin Kerr has powerfully criticized in this blog in the past. If the government is doing something bad related to terrorism, throw in an obligatory criticism of the Patriot Act, which would suggest to readers that the problem here is a Patriot Act problem, rather than an inevitable effect of traditional law enforcement rules and practices (or even of heightened law enforcement activity post-9/11 that is far outside the Patriot Act problems). And do that even if in fact the search is not at all linked to the actual Patriot Act as it was enacted, rather than the Patriot Act of myth.

[Eugene Volokh,
8/22/2003 11:06:09 AM]Depleted Uranium:Michael McNeil has a long and detailed discussion of this. I'm not an expert on the subject, so I can't vouch for it, but I thought it was worth passing along.

[Tyler Cowen,
8/22/2003 09:02:05 AM]The poor like globalization and multinationals Especially in sub-Saharan Africa. A Pew Center study surveyed the attitudes of the world's poor. 75 percent of the surveyed households in sub-Saharan Africa think that multinationals are good for their countries. The rich countries are most skeptical about the whole process.

[Tyler Cowen,
8/22/2003 06:16:07 AM]Arnie odds: Vegas favors him to win, 7-5, see this blog post by Greg Ransom. Bustamante is 8-5, so Arnie's lead is thin. Note these odds are Vegas guesses, not based on real betting.

Addendum: A few astute readers have suggested another information source, tradesports.com:"There is a web-site that allows futures-trading in political events.See here:Davis beating the recall is trading at 14.2 (as percent probability)Schwazenegger trading at 53.0 andBustamente is at 29.0.

Also on this page, you can see what the Dem candidates for President aretrading at by state Primary (NH & SC), IA Caucus, and Nominee."

[Tyler Cowen,
8/22/2003 05:40:21 AM]More on decentralized power A good article in today's Washington Post details the growing use of decentralized power supply in the United States. Currently about eight percent of the power in the United States comes from "distributed facilities," and the figure is growing. On this topic, see also Lynne Kiesling and a new book, edited by Daniel Klein and Fred Foldvary, called The Half-Life of Policy Rationales: How New Technology Affects Old Policy Issues.

Our careful air campaign, the inability to sweep down into the Sunni triangle in the first days of the war from Turkey, and the abrupt collapse rather than the destruction of enemy forces in the field paradoxically resulted in thousands who ran away rather than were defeated. We immediately ended the fighting and began the humanitarian effort to help the helpless — even as our enemies and their jihadist friends saw that magnanimity as the removal of the stake driven through their vampirish heart.

Yet tragically whether an enemy is engaged in battle or in the street, there always remains a finite number of recalcitrant diehards who must be killed or captured. So while it was amazing that Saddam's army dissolved in April, we should always remember that many of them still must be dealt with in August and September — both to eliminate combatants and, just as importantly, to send a message to foreign terrorists that it is a deadly mistake to take on the United States military.

The current choice of soft and largely civilian targets, while in the short-term horrific and depressing, is also instructive. The Baathist remnants and assorted terrorists who are now their allies have declared themselves not only enemies of the United States, but murderers of innocent Iraqis, Jordanians, and U.N. officials at large. They brag that they are driving infidels and Westerners of all stripes from sacred land. In fact, the current indiscriminate killing was a strategic mistake. It is a sign of desperation and can only unite the global community in its belief that terrorism, suicide murdering, and the agents of rogue regimes really do constitute a nexus of opposition to the forces of civilization — and must in return warrant universal resistance from the world at large.

But one event that merits blogging: I've just accepted a clerkship, starting summer '04, with Judge Alex Kozinski of the Ninth Circuit (see also here and here).

[Tyler Cowen,
8/21/2003 03:25:14 PM]An attack on "do not call" telemarketing listsThis piece, taken from techcentralstation.com, is aimed explicitly at libertarians. Radley Balko argues that the lists are not constitutional, restrictive of beneficial commerce, and not as good as market solutions to the overcalling problem.

[Eugene Volokh,
8/21/2003 01:51:11 PM]"Egyptian Jurists to Sue 'The Jews' for Compensation for 'Trillions' of Tons of Gold Allegedly Stolen During Exodus from Egypt"; that's the headline on a MEMRI special dispatch that purports to be a translation of "[t]he August 9, 2003 edition of the Egyptian weekly Al-Ahram Al-Arabi[, which] featured an interview with Dr. Nabil Hilmi, Dean of the Faculty of Law at the University of Al-Zaqaziq who, together with a group of Egyptian expatriates in Switzerland, is preparing an enormous lawsuit against 'all the Jews of the world.'" MEMRI, as I understand it, is quite a reputable source, and one not given to practical jokes.

Now it's not clear from the context whether the interviewee actually supports this legal theory on its own terms, or is just offering this to lampoon what he sees as "the Jews mak[ing] various demands of the Arabs and the world, and claim rights that they base on historical and religious sources"; it's hard to tell unless one has a sense of the attitudes and sense of humor of the likely readers. However, if it is a lampoon, it's not a very successful one: If anything, it's Arabs who are asking Jews for compensation on behalf of the Palestinians who used to live in Israel (or whose parents or grandparents used to live in Israel), not vice versa.

This is clear theft of a host country's resources and treasure, something that fits the morals and character of the Jews. . . .

[O]ne of the Egyptian priets said that this had been the Jews' twisted way throughout history . . . .

Moses and Aaron, peace be upon them, understood that it was impossible to live in Egypt, despite its pleasures and even though the Egyptians included them in every activity, due to the Jews' perverse nature . . . .

If this is indeed being said by an Egyptian law school dean, then that's pretty noteworthy (unless it's some sort of extremist law school that's highly marginal even in Egypt -- if it is, please let me know). Thanks to George Mason law professor Michael Krauss for the pointer.

[Eugene Volokh,
8/21/2003 01:14:21 PM]"The Love Charm": My short story by this name is now on the Web, as part of the current issue of Legal Affairs. Here's the opening paragraph:

In all of Los Angeles, there are only three reliable love charms. This is far too few for a city that needs many more. One was bought 20 years ago by a real estate developer, who is reputed to be deliriously happy. The less said about the second, the better. The third is the subject of this story. MORE . . .

Also, in case you're interested, there's an alternative ending available here; it would substitute for the section that starts with "Five hours after drinking Monday morning coffee . . . ." I'd love to get your vote as to which ending you like better -- just e-mail me a message saying "published ending" or "alternate ending," at volokh at law.ucla.edu.

And, no, I'm not quitting the day job.

[David Bernstein,
8/21/2003 01:12:10 PM]Googling: I've found that Google is getting much less useful for certain things, like travel planning, than it used to be. A while back, if you tried to look up a hotel on Google, you would probably get on the first page of results the hotel's home page, as well as a few travelogues or reviews giving you an objective look at the hotel. Now, you get pages and pages of reservations services trying to get you to book the hotel through them, all with more or less the same information and prices. Similarly, if you look up something like "cheap airline tickets tel aviv" you get pages and pages of travel agenices, few if any of which carry anything but the standard-priced tickets. The forces of commerce seem to have figured out how to game Google (which rates sites based on links to the site, as I understand it), and I wonder how (or if) Google will modify its search technology in response.

UPDATE: A reader adds:

It used to be you could google for song lyrics and get a fan's site, which often led you to some commentary on the song, or some opinion about its meaning, or the like. Part of the beauty of the web - I could find some amateur's opinion on, say, the Britpop band Pulp with little to no effort. Whereas now, even obscure songs are all linked to the same seeming multitude of lyrics collection sites, - www.azlyrics.com, www.lyricsdepot.com, www.musicsonglyrics.com, etc. - which never have any commentary on the songs, have no seeming connection to the band or any interest in it. Worst of all, they are quite often, in my experience, erroneous. And good luck trying to find an authentic amateur's page or opinion.

The problem is not with commercial sites themselves, but when commercial sites begin to dominate web-searching not because they are actually the most sought after or useful sites but because they, unlike noncommercial sites, have a financial incentive to figure out how to climb to the top of Google's listings even if no one is especially interested in them.

[Tyler Cowen,
8/21/2003 11:53:04 AM]Kobe off the hook?, Or who can you believe? I heard on the radio ("LA Kiss" station) that today's National Enquirer (that's right, and the issue is not yet on-line in case you are wondering) reports that Kobe Bryant and his accuser are settling for $5 million, and that the case will be dropped. I may have egg on my face in a short while, but I actually believed this report with p = 0.7. Forget about Kobe, my query is why I believed the National Enquirer (or LA Kiss, for that matter) in the first place. I recall that they broke a few leads on Clinton, as well.

I see a few possibilities:

1. They must sometimes tell the truth to market their exaggerations about other celebrities, such as Michael Jackson. Their goal is to invest in their powers to make things up. Furthermore they subtly or not so subtlety signal when they are telling the truth and when they are just making something up. Smarter readers can sift, less smart readers can be titillated while feeling they are reading something better than nonsense.

2. They do not want to be caught wrong about something easily verifiable, their untruths tend to be less easily falsified, so they promulgate a kind of reverse Popperianism ("avoid all falsifiable statements", which of course will include certain truths, but allow many strange, false claims as well).

3. They are in fact a reliable news source.

The Weekly World News makes even more exotic claims than does the Enquirer, they write about alien abductions and the like. I think we devote too little attention to the question of why people purchase deliberate untruths, which is important for understanding politics. Furthermore why do truths and untruths come packaged the way they do? And most of all, what will happen with the Lakers?

Incidentally, this might violate Schwarzenegger's and Davis's right of publicity, since their names are being used to advertise tacos. (I don't much like the right of publicity, and maybe there should be a First Amendment defense available here, but my sense is that under current right of publicity, this is indeed a violation, and not constitutionally protected -- unless they got the candidates' permission, which is unlikely.) Nonetheless, though Schwarzenegger has sued over such advertisements in the past, and though then-Governor Jesse Ventura and then-Mayor Rudy Giuliani have filed similar lawsuits while they were in office (unless my memory fails me), I doubt that either Schwarzenegger or Davis would sue over this now, since it might alienate some voters. On the other hand, if Schwarzenegger loses, he might then lose any qualms about suing.

To avoid messages objecting to my analysis on the grounds that Schwarzenegger and Bustamante are "public figures," let me stress this up front: The right of publicity, which generally bars people from using others' names, voices, or likeness in advertisements without the person's permission, applies to public figures as much as to anyone else; in fact, it's usually the public figures whose attributes are used. Nor is there any recognized exception for government officials or candidates for government office, though in practice, as I mention, many of them prefer not to sue.

A Guilford County high school graduate who recorded a perfect SAT score is suing UNC Chapel Hill, alleging the school refused to admit him after his grade point average dropped. Mark Edmonson, a National Merit Scholarship finalist, scored a perfect 1,600 on his SAT last year, but his grade point average fell from 3.8 to 3.5 in his senior year at Northwest Guilford High School. He wants a judge to force UNC to admit him as a freshman this year. Edmonson said in an affidavit filed in Orange County that university officials backed out of an April letter promising that as long as Edmonson graduated from Northwest, he would be admitted.

But a follow-up letter from UNC said Edmonson's admission had been temporarily suspended because his grades dropped during his senior year. Thomas Ziko, a special deputy attorney general, said Edmonson's SAT scores are only part of what UNC takes into account in deciding who should be admitted. Other factors, Ziko said, include declining grades. "His senior year grades are C's, D's and F's," Ziko said. . . .

Stephen Dunn makes some good points about the lawsuit; InstaPundit also links to it.

I have little sympathy for the student; but it's important to note that his lawsuit isn't claiming some general legal right to be let into a university without regard to your senior grades, or an inalienable right to slack off. Rather, as best I can tell, his lawsuit is a basic contract law claim: UNC made an offer, I've accepted it, so we now have a contract that UNC can't renege on. If this is so, then this is a conventional, even generally quite worthy, legal theory. People have a legal right to enforce their contracts. Maybe sometimes they should let the other side bow out, especially when they themselves screwed up, and should be embarrassed about their screw-up. But if the university made a binding promise, there's nothing shocking about a student holding the university to that promise (especially if the student has relied on it, in slacking off during his senior year, albeit in a way that we might think is unworthy).

And just as this is a pretty conventional legal theory, albeit in an unusual factual context, there is a pretty conventional objection to it, as an update at Begging to Differ points out. The university wasn't so foolish as to give a clear and unconditional offer. The offer letter apparently read, in part:

It is my great pleasure to offer you admission to the University of North Carolina at Chapel Hill . . . The same curiosity and hard work that have brought you to this happy moment in your academic life will be crucial as you make the transition to college. Because we want you to finish strongly and come to Carolina ready to excel, your enrollment will depend upon your successful completion of your current academic year. We expect you to continue to achieve at the level that enabled us to provide this offer of admission; we also expect you to graduate on time. Please arrange to have your final end-of-the-year record sent to us as soon as it becomes available.

The language is ambiguous. UNC does say it's offering admission, explicitly imposes one condition ("will depend upon your successful completion"), and doesn't explicitly frame the "expect[ations]" as express conditions, using the "will depend upon" language. At the same time, the expectations are expressly mentioned (and also quite reasonable), and may well be understood as defining what "successful" means in the preceding sentence.

The question in such cases is generally how a reasonable person in the student's position (and presumably in the parents' position as well, since the student was probably a minor at the time the offer was made and accepted, and it is expected that his contracting decisions would be made in part by the parents) would understand the wording. My guess is that a reasonable person would indeed understand the "expect[ations]" are understood as part of the definition of "successful," on which "enrollment will depend." But in any event, the question here isn't one of some civil right to nondiscrimination based on lousy senior grades, or some other such cockamamie legal theory -- it's a matter of traditional, broadly accepted, and well-known (though often hard to apply) principles of contract law.

And, of course, this should also be a reminder to UNC to make their letters more clear. If their offer is conditional, they should expressly state the conditions, and make clear that they are conditions. If they don't want to make a legally binding offer at all, but just express interest, they should make that clear. Perhaps they should win even under this letter. But it wouldn't hurt to make things more clear -- to decrease the chance of losing a lawsuit, to decrease the chance that a lawsuit would be filed, and to keep students from misunderstanding what the offer is, and possibly relying (though in a foolish way) on such a misunderstanding.

[Jacob Levy,
8/21/2003 09:57:04 AM]APSA-Malawi blogging: Looking through the comparative politics sections of the program, I found very few papers yet online on the questions that interest me most. But one of the few I just have to mention here-- an ethnic conflict paper that also happens to be the only paper at the entire annual meeting even in part about Malawi...

Abstract: This paper explores the conditions under which cultural cleavages become politically salient by taking advantage of the natural experiment afforded by the division of the Chewa and Tumbuka peoples by the border between the African countries of Zambia and Malawi. Drawing on original survey work conducted in four villages, the paper documents that, while the objective cultural differences between Chewas and Tumbukas on either side of the border are identical, political divisions between these communities run deep in Malawi but are barely recognized in Zambia. The paper argues that the reason for the differing political salience of the Chewa/Tumbuka cleavage in each country stems from the different sizes of the Chewa and Tumbuka communities relative to the national political arena in each country. This cleavage is highly political salient in Malawi because these groups are each very large vis-a-vis the country as a whole, and thus serve as natural competitors for national power; it is politically irrelevant in Zambia because Chewas and Tumbukas are very small relative to the country as a whole. Rather than compete with one another, members of these communities in Zambia ally together as “Easterners” to compete more formidably with the country’s other ethnic political communities. The paper thus suggests that the political salience of a cultural cleavage depends not on the nature of the cleavage itself but on the sizes of the groups it defines, and whether or not they will be useful vehicles for political competition.

This seems to me like an intuition-confirming paper; with an N of two states and possible explanations involving two variables ("objective cultural difference" and size of the groups relative to the size of the electorate), we don't really have much of a test of the claim. But maybe the paper addresses that concern. (Maybe the relevant N is four villages rather than two states, in some way that I can't tell from the abstract.) The intuition is surely right, though.

[David Bernstein,
8/21/2003 09:12:40 AM]Israel's New Strategy: Ze'ev Schiff explains that Israel will attack Hamas and Jihad with no holds barred and regardless of the consequences to Abbas, acting under the theory that the Abbas government, in its unwillingness to act against the terrorist groups, has merely given Arafat indirect diplomatic access to the U.S. Meanwhile, by foreswearing even the possibility of a crackdown on Hamas and Jihad, Abbas gave those groups agenda control.

Israel plans to seize the initiative, and the fact that its first target was a leader of Hamas's "political" wing (which, incredibly, the EU still refuses to shun), suggests that this is going to be an all out war. Before the "hudna", Israel made it clear that contrary to prior practice it was about to go after the "political" leadership. This, along with Israel's decimation of the military leadership, temporarily scared them into a ceasefire. Abbas gave Hamas a last opportunity to mutate into a political party, and it turned it down.

I'll be in Israel this weekend, so I'll be able to give Conspiracy readers a first-hand report of the mood there.

The bottom line of this book: women are less likely to negotiate than are men, and less likely to enjoy it. Krueger's summary notes: "Men see situations as adaptable; women see them as unchangeable. Men use metaphors like "winning a ballgame" to describe negotiations; women use metaphors like "going to the dentist." Women are "more likely than men to think that simply working hard and doing a good job will earn them success and advancement.""

Also, get this: "[The authors] speculate that much if not all of the male-female gap in earnings can be explained by women's aversion to negotiating." (Please don't flame me on this one, I am reporting someone else's research, not my own conclusions.)

Krueger is a smart guy, so his pointer to the work is a good sign. The Boston Globe on-line has a useful article on the book as well.

Wednesday, August 20, 2003

[Eugene Volokh,
8/20/2003 04:39:24 PM]Jury of one's peers: One hears a lot about how people are entitled to "a jury of their peers," and how this-and-such trial is unfair because the jurors weren't really the defendant's peers in some significant way (race, class, or what have you). What does the law really say about the right to trial by jury of one's peers?

Well, U.S. law actually uses this phrase pretty rarely -- it doesn't appear in the U.S. Constitution, Bill of Rights, or statutes -- and for good reason. In England, the phrase apparently referred to a right of nobles to be generally tried by nobles, and commoners by commoners. Magna Carta (1215) says, among other things:

21. Earls and barons shall not be amerced except through their peers, and only in accordance with the degree of the offense. . . .

39. No free[ man] shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land. . . .

Sir William Blackstone, the leading English commentator of the late 1700s -- who was quite influential in America -- made clear that though commoners and nobles have various degrees of status, "as the lords, though different in rank, . . . [are all] peers in respect of their nobility, so the commoners, though some are greatly superior to others, yet all are in law peers, in respect of their want of nobility." One's peers are therefore (more or less) either fellow nobles, or fellow commoners, though with some occasional twists. My friend Dan Klerman, who teaches law at USC and who is an expert on (among other things) English legal history, puts it this way:

Basically everyone got jurors from the same pool, except members of the House of Lords ("peers"), who were tried by the House of Lords itself. Note that occasionally a "special" jury was summoned. For example, Mansfield sometimes summoned a jury of merchants in complex commercial cases. Also, in cases involving foreigneres, a jury "mediate lingue" was summoned, composed half of Englishmen and half of foreigners. . . . Some people have cited the jury "mediate lingue" as a precedent for racially balanced juries.

In America, we're all commoners, so a "jury of one's peers" is simply a jury of fellow citizens who live in the area (though I suppose that some jurisdictions might also include noncitizens; there's no federal constitutional barrier to them so doing). When people say today that we're entitled to trial by a "jury of one's peers," they generally mean (if they're speaking correctly) that we're tried by fellow citizens, and not by government-employed judges.

Curiously, the only two references to this phrase that I have found in state statutes throughout the country refer to "teen juries," where young offenders are in some measure tried or sentenced by a jury of "teen peers" -- shades of the special juries that Dan mentioned. I don't know whether this works well, or whether it even works at all, but it's the rare attempt to really add more to "peers" than just "citizens." The only reference in a state constitution is in the Tennessee Bill of Rights provision related to fines, which can't be imposed except by a jury of the defendant's peers (unless the fine is under $50). My sense is that there too "jury of his peers" simply means "jury."

[Eugene Volokh,
8/20/2003 04:14:27 PM]Nine American time zones: What are the nine official time zones set forth by Congress, and, for extra credit, what are their names? No need to e-mail me with your answer -- the correct answer is given here, in 15 U.S.C. sec. 263.

[Eugene Volokh,
8/20/2003 03:54:09 PM]"The Conservative Case Against Racial Profiling" is an article by Nelson Lund, a George Mason law professor and a real conservative, as opposed to a squish like me. I thought it was a very interesting piece, and I asked him to put it on the Web; it just came up, so I'm pointing people to it. Special bonus: It's only 15 pages long, quite humane as law review articles go.

[Tyler Cowen,
8/20/2003 03:31:17 PM]Now you can buy a Friendster network on ebay: Surely you have read about Friendster by now, the new way to make friends, meet a spouse, or just lie. Read this article to learn how a claimed Friendster network need not be a person's real network of friends at all.

[Tyler Cowen,
8/20/2003 01:43:28 PM]Seven million Russians have bought this book:The Winter Queen, by Boris Akunin. Fun and charming, and more conceptual than most mysteries. For better or worse, this is where Russian literature seems to be heading.

[Jacob Levy,
8/20/2003 12:05:37 PM]e-mail problems: It looks to me as if the uchicago server has been pretty severely affected by the latest worm-- it's trying to handle scores of e-mails flying back and forth with big ugly attachments on them. I don't know whether any of my incoming or outgoing e-mail has been lost, but it some of each does seem to have been delayed by hours. If you've sent me anything really important in the past thirty-six hours and haven't heard back from me, you might want to re-send it.

[Jacob Levy,
8/20/2003 11:15:16 AM]Constitutional misinterpretation: I was pretty disgusted and infuriated by this Adam Cohen NYT editorial from yesterday's NYT, which equated the judicial theories of Republican judicial nominees with support for slavery, and thought about blogging it, but yesterday was a blogfree day for me. And now I won't bother, because Stuart Buck has already written an appropriate response.

I'm going to try to do a column on what a rotten influence Indians are in our politics, pegged to California. If you have suggestions for stuff to read or people to talk to, I'd appreciate hearing from you. Thanks!

Matt's concerned about the "opinion first, facts later" character of the post. But I want to say a word about the underlying issue.

Indian political activism and lobbying is by no means limited to gambling issues. But it does seem to be the case that an awful lot of the money given to campaigns by organized Indian groups is driven by gambling questions, and that there seem to be a lot of political arrangements verging on quid pro quos between Indian gaming lobbyists and (usually but not always Democratic) politicians. The explanation for this isn't hard to find.

First: Selective or partial legalization is a recipe for corruption. This is a general rule of widespread applicability. There are high returns to being one of the few legal providers of an otherwise-illegal good. That means there are high profits to be had from affecting the behavior of those state officials who determine which providers get the nod.

State governments don't have the same total discretion over Indian gambling that they do over the rest of the casino industry. But they still have rather a lot; the tribes have to negotiate with the states over how much of what kinds of gambling they'll be able to offer. Both the Indian and non-Indian gambling industries face classic rent-seeking opportunities: there are gains to be had from getting state officials on your side, allowing you into the business and keeping your competitors out. The predictable results follow, from above-board campaign spending to under-the-table outright bribes and corruption. This is not a distinctively Indian problem. Neither-- contrary to what William Safire suggests in his annual gambling column-- is it a problem distinctive to some inherently sordid character of the gambling business. It's what always happens with discretionary selective legalization.

Second: Indians are, on average, very poor. Tribal governments are, very often, collectivist in their economics, allowing little space for internal pluralism of news media or business enterprises. So we see disproportionately little organized and funded Indian political activity in general. The gambling industry is wildly disproportionately important to some Indian economies and tribal governments; it stands out against what is too often a background of economic barrenness. So the stakes are even higher, from the tribal perspective; and there's not mich visible Indian campaign spending on other issues to set against the public perception created by the tribal gaming industry's spending. We don't talk about the corruption associated with non-tribal gaming as the whites having a rotten influence on politics, because there are lots of other mostly-white interest groups that can also afford to spend in defense of their interests. There's a paucity of other such groups among Indians. but that doesn't make the tribal gaming lobby any more "rotten" than the non-tribal gaming lobby.

[Jacob Levy,
8/20/2003 10:46:21 AM]More APSA blogging: A continuing roundup of papers from the upcoming Annual Meeting of the American Political Science Association that I think look important or intriguing. These are all political theory papers; I'll mention some empirical papers later on.

Abstract: The two volumes of Tocqueville’s Democracy in America offered the image of an accomplished and successful American democracy. Tocqueville lived nineteen more years after the publication of Volume Two and although he never wrote a third volume of Democracy, he continued to be interested in American political events and exchanged a number of important letters with his American friends. Did Tocqueville change his views on America outlined in the two volumes published in 1835 and 1840? If so, which of his views did change and why? Did the evolution of his views of America affect his theory of democracy? This paper seeks to answer these questions by examining Tocqueville’s correspondence and, to a lesser extent, his participation in the constitutional debates of 1848 in France. Its purpose is to reconstruct from the letters that Tocqueville exchanged with his American friends after 1840 what the third volume of Democracy might have looked like if it were ever written.

Abstract: This paper discusses the absence of New Testament references in Locke's TWO TREATISES. (1) It considers Locke's relation to Filmer and attacks interpretations which see Locke as producing nothing but a political pamphlet. (2) It examines Locke's interpretation of ROMANS 13: 1-5, and argues that Locke does not read this as a general support for political authority (let alone slavery). (3) It considers the use of Christian material in Locke's writing on toleration, and abandons positions previously held by this paper's author. But (4) it does not resolve the mystery about the absence of New Testament references in the TWO TREATISES.

The Priority of Liberty has played a central role in John Rawls’s Justice as Fairness, one that has grown in importance with each successive work. It has also been attacked in a long line of articles, including ones by Brian Barry, Kenneth Arrow, H.L.A. Hart, Russell Keat and David Miller, Henry Shue, and Norman Daniels. All of these authors have found Rawls’s defense of the Priority of Liberty wanting in certain respects, and many have been sharply critical of the very idea of lexical priority for the basic liberties: Brian Barry deems it “outlandishly extreme,” while H.L.A. Hart considers it “dogmatic.” In the first section of this paper, I examine Rawls’s three arguments for the Priority of Liberty in Theory of Justice and show that two of them do indeed fail (either in whole or in part) because of a common error: Rawls’s belief that once he has shown the instrumental value of the basic liberties for some essential purpose (e.g., securing self-respect), he has automatically shown the reason for their lexical priority. I refer to this belief—that the lexical priority of the basic liberties can be inferred from the high priority of the interests they serve—as the “inference fallacy.” Lexical priority is such a stringent condition that a special form of justification will turn out to be necessary for its defense. As I also show, however, Rawls’s third argument for the Priority of Liberty is not vulnerable to the inference-fallacy objection. This argument, which I call the “Hierarchy Argument,” suggests that the Priority of Liberty follows directly from a certain conception of free persons. Unfortunately, the argument as presented is radically incomplete, leaving many important questions unanswered. In the second section of the paper I therefore present a Kantian reconstruction of the Hierarchy Argument, showing that it can offer a compelling and attractive defense of the Priority of Liberty. Beginning with the Kantian conception of autonomy endorsed by Rawls in §40 of Theory, this reconstruction explains our highest-order interest in rationality, justifies the lexical priority of all basic liberties, and reinterprets Rawls’s threshold condition for the application of the Priority of Liberty. What had perhaps previously seemed an inexplicable and disproportionate concern for the basic liberties is shown to flow quite naturally from one of Rawls’ deepest moral commitments. Finally, in the third section of the paper, I examine Rawls’s defense of the Priority of Liberty in Political Liberalism, where he adds two new arguments to the battery of arguments presented in Theory. After showing that these two new arguments are themselves susceptible to the inference-fallacy objection, I then explore whether the reconstructed Hierarchy Argument can be used to defend the Priority of Liberty within the context of a political (as opposed to a Kantian) liberalism. I conclude that it cannot, as some reasonable comprehensive doctrines (such as liberal utilitarianism) will be unable to endorse it. This result suggests that the move from the Kantian comprehensive doctrine defended in Theory to the idea of an overlapping consensus of reasonable comprehensive doctrines in PL may be expensive: the weaker premises of the latter work may simply yield weaker results, such as a liberalism without the Priority of Liberty.

[David Bernstein,
8/20/2003 09:56:39 AM]Whistleblowers: Shareholders of public corporations might want the companies they own to give whistleblowers on incentive to blow the whistle on issues of fraud, gross mismanagement, discrimination, and other acts of management that could result in a loss of shareholder value. So my query is, do public companies ever give positive incentives to internal whistleblowers? If so, how do they navigate the fine line between encouraging legitimate whistleblowing and discouraging strategic gameplaying in the guise of whistleblowing? Are the incentives ever monetary? Let me know at dbernste at gmu dot edu. I will let readers know what I find out.

The Limbaughs, I'm told, are a big legal family in Missouri. Rush was apparently seen as the black sheep, for a while -- as I suppose he still is, by some . . . .

[Tyler Cowen,
8/20/2003 05:34:32 AM]Bus privatization, Israel and terrorismThis Israeli government souce remarks that bus privatization first began in 1997. In light of recent events, I have wondered whether the privatized buses have a better (or worse) record in preventing terrorist explosions. I am all for getting tough with the terrorists, in the meantime we should consider institutional reforms as well.

I can see two possibilities:

1) Liability law is, or could be, pretty tough, so further privatization of buses will limit bombings, at least if combined with the right legal framework. (Note that whether monopolists or competitive firms have stronger incentives for safety is an open question, the profits of monopoly can make you more eager to keep your customers.)

2) Bus bombings are, obviously, a huge political issue, so actually the government-run companies play things as safe as possible.

I've done much searching and come up with little (I don't read Hebrew, for a start), if you know more please post me.

Addendum: An Israeli lawyer (who wishes to remain anonymous) offers the following information:

"First, I believe the description in the web site you had linked to is inaccurate. Buses have never been operated by the Israeli government. Rather, they have been operated by a monopoly and government regulation prevented competition. The proper way to describe the developments in this sector would be as opening the market for competition.

Second, Israel has a system of terrorism insurance financed and administered by the government. Although I am not sure, I believe legislation thus pre-empts any attempt to recover additional damages through a lawsuit. In any event, Israeli tort law is very strict concerning the method for computing damages (virtually no damages for pain and suffering and no punitive damages). That means that even in the absence of formal preclusion from bringing lawsuit, the practical exposure of bus companies is very limited.

Finally, the government is operating a (limited in scope) security force to secure buses. "

Tuesday, August 19, 2003

[Eugene Volokh,
8/19/2003 10:18:28 PM]Another word you don't often hear these days: Reader John Callahan points to the Web page for the Aniak High School basketball team, the Halfbreeds. Here's their logo:

[Randy Barnett,
8/19/2003 09:05:15 PM]An interview with Larry Solum of Legal Theory Blog: In the third of a fascinating series, Will Bauge of Crescat Sententia presents his 20 well-researched questions to Legal Theory Blogger Larry Solum. You should definitely check this out here.

David Axelrod, the great-grandson of Leon Trotsky, related to me that he told his father: "You said that the Old Way of Torah was no good. You and they kept promising that another 'five year program' would bring heaven on earth. Now after more than fifty years your New Way has led us to hell on earth. I am returning to the Old Way of Torah and to the Land of Israel."

Further research reveals that Axelrod is not your typical religious settler--that would merely be a weird historical twist, that Trotsky's atheistic internationalism morphed over three generations into religious nationalism. Rather, Axelrod is active in the extremist Kach movement founded by the late Rabbi Meir Kahane--which makes me wonder if fanaticism is to some extent genetic.

[Tyler Cowen,
8/19/2003 04:00:19 PM]Why so few blacks in academia? Nathan Glazer provides a very good summary of recent controversies, in the latest issue of Public Interest, most of all a discussion of the new book Increasing Faculty Diversity, by Stephen Cole and Elinor Barber. Did you know that a black student from a black college or state university is more likely to become an academic than a black student from an Ivy League university? Is this because black students are, on average, a "bad fit" at the Ivy League institutions, and thus discouraged? The evidence is far from conclusive, but the claim has more support than I had thought.

[David Bernstein,
8/19/2003 02:36:32 PM]My views on the Matter: As for me, while I understand Charles's emoting, I don't find namecalling that doesn't clearly differentiate between the terror leaders and the silent (at least) minority of Palestinians who would like to end the violence especially helpful, [edit: or at least it's not my style]. But I agree with the following comment on LGF:

Sharon should say the following:

"We now expect the PA to move immediately and decisively to disarm and dismantle Hamas, Islamic Jihad, and the Al-Aqsa Brigades[note that this is required in any event by the "roadmap"]. We will provide any necessary logistical help. We will expect concrete and genuine results, in terms of arrests, weapons seizures, and closure of offices and bomb-laboratories. If and when they start taking these actions, we will share intelligence as well.

"If we do not see results in the next twenty-four hours, we will do the job ourselves. Thoroughly."

The thing I would add to this is that once Abbas acts decisively to dismantle the terror groups, Israel will respond by immediately evacuating one or more of the crazier settlements. I'd start with (though this is wishful thinking given Israeli politics), the insane enclave full of (often) violent religious fanatics in Hebron (some of whom recently formed a Jewish terrorist underground). I know the Jews were driven out of Hebron in a pogrom in 1929, but just as the Palestinians have to give up their right of return fantasies, so do the Jews. And the more reasonable part of the Palestinian population is highly skeptical of Israeli motivations precisely because since Oslo not a single piece of West Bank territory settled by Jews at that time has been evacuated, as will inevitably be necessary for a peace accord. Unfortunately, Israeli governments have reacted to previous lulls in violence with complacency, instead of making dramatic but politically difficult gestures to advance cooperation with the Palestianians. Evacuating a significant settlement while the terror groups are being dismantled by Abbas with help from Israel would truly move things forward--showing that Israel is willing to make a major peace gesture while not under fire. Level of optimism of this scenario occurring: 0.

UPDATE: The U.S. government has previously believed that Abbas is not militarily capable of taking on the terrorist elements in his government, and did not insist on implementing the roadmap. I can't say I have any inside information on this, but given that more recently the U.S. has consistenly called on Abbas to start dismantling the terror organizations, the U.S. apparently either believes that Abbas is strong enough to do so, or, that there is at least a chance Abbas can win such a confrontation and that the terrorists (including, it must be emphasized, Arafat, who has done everything possible to undermine Abbas) are so intent on wrecking his government that he has nothing to lose by making the attempt.

Any cooperation with Israel would be seen by many Palestinians as collaboration with the enemy. OK. It's time for the Palestinian Authority leadership to firmly tell its people that theirs will not be a state of murderers of children, and that they will cooperate with anyone, including the hated Israelis, to prevent this from occurring.

ANOTHER UPDATE: "Labor and Social Affairs Minister Zevulun Orlev (NRP) said [link requires registration], 'Israel should give Palestinian Prime Minister Mahmoud Abbas and PA Security Minister Muhammad Dahlan a 24-hour ultimatum: start dismantling terrorist organizations or Israel will have to do it.' Israeli lives can not be left in the hands of Abbas and Dahlan, Orlev said."

YET ANOTHER UPDATE: As usual, Ze'ev Schiff of Ha'aretz has a compelling analysis of the situation.

UPDATE: Charles seems to think that I am somehow defending the New South Wales law, instead of pointing out the absurdity of making comments like the one quoted above illegal. My intent is obvious if one follows the relevant link to my earlier post on how the law has been used to suppress "one-sided" pro-Israel speech. But I am happy to say that I just discovered the Australian debacle had a happy ending. An appellate tribunal overturned the original opinion that had eviscerated free speech rights. The appellate decision escaped my best internet and Lexis searching abilities. (The appellate opinion does not seem to be in Google's purview, and unlike the original opinion apparently attracted minimal if any attention from the Australian media; I only discovered it thanks to an Australian reader who writes about such issues). The point about the danger of allowing antidiscrimination concerns to trump freedom of speech still stands, of course.

Of course electricity is a natural monopoly. There are seven or so supermarkets near my home, but it would be too costly to have seven different electric grids. So imagine one or two electric grids and a high degree of monopoly power, even with two grids you would get imperfect competition or collusion (remember, no antitrust law under laissez-faire).

How much better is centrally supplied power for you, compared to a home or neighborhood generator? Let’s say K dollars per year (if you are tempted to go this route today, click here, or read more on Slate, which gives prices as well. It is not easy for me to translate the advertised prices into the real yearly cost for full home electricity, email me if you know.) So if the customer’s net advantage of centralized supply is $K per year, your electric company will try to bill you for $K-1 a year, to extract as much profit as possible while keeping you from buying your own generator.

So for years on end electricity would be far more expensive, and more scarce, than it is today. (Note for economists: no one will accept that an “efficient” outcome based on “perfect price discrimination” is desirable, the utility gets all the benefits, though it is more complicated if all consumers own utility shares as well, thus keeping the profits.)

But notice that the supplier has a big incentive to innovate. Any cost savings it gets to keep. And anyone with a new technology can enter the market and try to recruit customers.

Perhaps most importantly, there are strong incentives to make home or local generation much cheaper. This might require science fiction technologies, but hey, the modern world put Jules Verne to shame in well under a century.

In the long run you would have a) much cheaper home or local generation, b) a decentralized system, immune to terrorist attack, c) no significant regulatory issues, it would be like buying a toaster, and d) perhaps a system that is more environmentally friendly (of course this depends, you don’t want people dumping system waste into the water table, or being stuck with hard-to-dispose-of batteries, let’s hope for solar panels, and don’t even ask about the guy who gets fried in the backyard trying to fix or operate his system instead of calling in an expert).

I know this idea is harder to sell than terrorism futures. “Hey, pay thousands each year, right now, for decades, your grandchildren will have something great but of course I am a Hayekian and can’t tell you right now exactly what the good future outcome will look like!”

Still, I don’t think we should dismiss the laissez-faire idea outright. Look at it this way, let’s say you are a technological optimist who believes that energy can be virtually free within fifty to one hundred years. Might this be one way of getting there? The best way?

Oddly, if you favor laissez-faire, it is in some ways harder to complain when the current system misfires. If you think that high prices drive useful local innovation, high prices cannot be altogether bad. Low quality service might be useful too. “The worse things get, the better they get” would suddenly be a plausible claim.

A top San Francisco chef has become the target of radical animal-rights activists in a series of attacks that police are calling domestic terrorism.

Aqua chef Laurent Manrique has been the victim of vandals who spray-painted his home and splashed his car with acid, and he has received threatening letters and videotapes.

It's part of what police say may be a national campaign aimed at those who produce a signature ingredient of French haute cuisine -- foie gras -- and the chefs who use it.

Foie gras -- fattened goose or duck liver -- has become controversial because of the way it is produced, which involves force-feeding fowl. How much the animals suffer -- or whether they suffer at all -- has been the subject of much debate.

The worst damage came last week when vandals broke into the new foie gras specialty store and restaurant that Manrique and his partners had planned to open next month in a historic adobe building on the Sonoma Plaza.

Called Sonoma Saveurs, it will offer various foie gras preparations plus wine, cheese and other local products.

Vandals plugged new plumbing with chunks of cement, spray-painted the walls and appliances, and turned on the water, according to police.

The resulting flood forced two neighboring stores to shut down, with little hope of reopening until next week at the earliest, said property manager Lori Bremner. She said the adobe in the building, built in 1842, should dry out, but the damage to the new shop and the loss of business to the neighbors could send the total tab close to $50,000. . . .

Sonoma Police Chief John Gurney said his department is coordinating with other local police departments and the FBI. He calls the case "domestic terrorism."

"It's because of the nature of the crime and the fact that they are trying to impact the freedom of citizens here and intimidate them to change their course of business," he said. "That happens to be illegal."

The attacks began last month when vandals sprayed red paint on Manrique's Mill Valley home and on the Santa Rosa home of Didier Jaubert, a partner in the foie gras venture. Attackers also put acid-based etching foam on their cars and windows, and glued shut locks and garage doors. . . .

The perpetrators left a videotape, which Manrique said was shot from his garden and showed his family relaxing inside their home. It was accompanied by a letter warning that they were being watched. . . .

Then came threatening letters that warned the men to "stop or be stopped," said Jaubert. . . .

Domestic terrorism is indeed the right term -- even if one wants to limit it to violence against people rather than vandalism of property (which I wouldn't do, especially when the vandalism is in the five digits range, and may drive people out of business), the personal threats are plenty for me. Just as anti-abortion terrorism needs to be forcefully condemned, so is animal-rights terrorism. (The latter has fortunately not been as violent as anti-abortion terrorism so far, but it's definitely bad enough.) Thanks to How Appealing for the pointer.

[David Bernstein,
8/19/2003 06:38:24 AM]Explosion at UN Headquarters in Baghdad It doesn't seem to have hit the U.S. news wires yet, but Ha'artez (an essentail source for news regarding Israel, by the way) and Debka are reporting a deadly explosion at UN headquarters; Debka says it was a car bomb.

[Eugene Volokh,
8/19/2003 06:16:58 AM]Good advice: Just came across an interesting bit of old lawyerly wisdom, quoted in an article by my colleague Andy Kelly of the UCLA English Department: "Loquendum ut vulgus, sentiendum ut docti" -- "Speak like the common people but understand like the learned." (Which is to say, don't say "Loquendum ut vulgus . . . .")

Monday, August 18, 2003

[Tyler Cowen,
8/18/2003 04:03:04 PM]Get your free songs from CanadaThis article tells you how Canadian supply will stymy the RIAA strategy to stop music downloads, apparently the practice is legal under Canadian law.

[David Bernstein,
8/18/2003 03:32:24 PM]The Inexplicable Popularity of FDR: I'm reading the very interesting The New Dealers' War by Thomas Fleming, a vigorous attack on the Roosevelt Administration's wartime policies, on which I will probably have more to say soon. For now I'll limit myself to the following. Out of curiosity, I looked up some reviews of the book, including Amazon.com reviewers, and one of the latter wrote this: "The book I am really looking forward to is the one that explains how FDR presided over 10 [sic] years of economic depression, and is celebrated for 'saving us' from same." Something I've always wondered about, too. Why is Hoover infamous for presiding over four years of Depression, not terribly uncommon in American history, while Roosevelt is much-beloved for presiding over an unprecedented two more presidential terms of Depression, while much of the rest of the world economy was recovering [edit: at a faster pace]? Of course, Roosevelt tried to blame the nation's economic travails on the obstinacy of the Supreme Court, but, even if we accept the highly questionable notion that the NIRA, etc., would have pulled the U.S. out of the Depression, shouldn't Roosevelt still take the blame for choosing as his means to combat the Depresssion balatantly unconstitutional legislation that the Court was obligated to invalidate (9-0, with liberals Stone, Brandeis, and Cardozo in the 9)?

UPDATE: Matthew Yglesias has an interesting post discussing some of the factors that explain FDR's popularity. In particular, Yglesias shows that GDP starting rising for the first time since 1929 in 1933, and rose gradually through the decade (with a major hiccup in 1937-38, which the public did indeed blame on Roosevelt's increasingly radical Second New Deal policies, and which led to severe Democratic losses in the 1938 elections), until it finally reached 1929 levels. So, economic recovery was slow, with double digit unemployment throughout the 1930s, but there was improvement from Hoover's time. And, to his credit, Yglesias is balanced enough to acknowledge the possiblity that the resumption of growth correlated with, but was not caused by, New Deal policies, which, as economic historian Robert Higgs argues, were from any reasonable economic view a counterproductive hodgepodge. One problem for the anti-Roosevelt forces was that with the decline of classical liberal economic views (see Ekirch's The Decline of American Liberalism), the public had lost faith that the economy would recover on its own, as it had done from other major (though less severe) depressions. One could argue that even bungled New Deal policies would not have stopped the economy from gradually recovering so long as private enteprise remained paramount and the Fed ceased its deflationary policies, but this argument certainly wasn't flying in the 1930s, when monetarism had not yet been invented and the leading minds of country attributed the Depression to the nonsensical "problem" of "overproduction" in an under-regulated market.

For a less favorable perspective than Yglesias's on economic growth in the 1930s (though not rebutting the point that the public perceived Roosevelt's policies as helpful), see this article by Higgs, who does not see reaching 1929 levels of GDP in 1940 after seven years of FDR as a great triumph, and who notes that investment also remained suppressed for eleven years, "an extraordinarily long time." Higgs argues that true recovery from the Depression did not arrive until after World War II. You should also read this brilliant Higgs article, demolishing the myth that the War years were years of "prosperity."

I was shocked to encounter the following (p.130), apologizing for Heidegger’s loyalties to Hitler [the words in brackets are mine, not his]:

“Hitler had in 1924 been briefly imprisoned for an attempted coup in Bavaria. But he had learned from his mistakes [sic] and had now come to power by legal means [only at first, then he seized power]. Hitler was, it is true [really?], anti-Semitic. But anti-Semitism had not yet acquired the taboo that it has now…No one at that time (except Hitler himself) [more than a minor qualification, when the issue at stake is Hitler fandom!] dreamed of exterminating Jews. Nazism offered many attractions [sic] besides anti-Semitism: a new deal for the unemployed, relief from the ravages of technology [is this what the Wehrmacht offered?] and capitalism, the repudiation of the Versailles Treaty, a return to traditional (“family”) values, a cult of youth…He [Heidegger] thought that he could influence the future course of Nazism. This seems absurd now…But it did not seem so in 1933…”

I might add that Heidegger never repudiated his support for Hitler.

[Eugene Volokh,
8/18/2003 12:08:31 PM]Memories of childhood: When I was a child, my mother would sing me lullabies, and naturally I still remember them quite fondly. I particularly remember half a stanza, which as I recall is all she sang to me from this one lullaby:

Sweet, yes? In Russian, it rhymes and scans; trust me, it's quite nice. Since I've just configured my computer to let me conveniently type in Cyrillics, I decided to find the whole lullaby, which I expected to be quite similar. And the remainder of the stanza met my expectations:

I will tell you fairly tales,Sing a little song,You should slumber, closing your eyesLulla-lullaby.

But then the next stanza shifted just a little bit in tone and subject matter:

Along the rocks flows the Terek [a North Caucus river],The cloudy wave splashes;The angry Chechen crawls onto the shore,Sharpens his dagger;But your father -- an old warrior --Has been strengthened in battleSleep, baby, rest peacefully,Lulla-lullaby.

You'll yourself learn -- there'll be time,A warlike time of life;You'll bravely put your foot in the stirrupAnd take up the shotgun.The battle saddleI will embroider with silkSleep, my own childLulla-lullaby.

You will look like a championAnd your soul will be a Cossack'sI will go to say farewell --You will wave your hand . . .How many bitter tears in secretWill I cry that night!Sleep, my angel, quietly, sweetlyLulla-lullaby.

I will suffer from the parting,Will wait without consolation,I will start to pray all day,Read my fortune at night;I will think that you are homesickIn the foreign land . . .Sleep, while you don't know care,Lulla-lullaby.

I will give you for the roadA sacred icon;Praying, you shouldPut it before you;And, preparing for the dangerous battle,Remember your mother . . .Sleep, my wonderful baby,Lulla-lullaby.

I think I know now why my mother didn't sing me the whole song. (She tells me she didn't know the other stanzas, but that probably just means that her mother thoughtfully omitted them.) The lullaby is called the Cossack Lullaby, by the way, and is credited to Lermontov; as you can tell, Russia has had trouble with Chechnya for much longer than a couple of decades.

[Jacob Levy,
8/18/2003 11:59:37 AM]APSA blogging To begin with, here are the APSA papers from one of the political scientists best-known to the blogosphere.

Abstract: The globalization of finance and concomitant increase in financial crises increased the demand for a new “international financial architecture.” Most of the scholarly and policy focus has centered on the role of the international financial institutions (IFIs) – the International Monetary Fund and World Bank. This paper argues that focusing on the IFIs overlooks the ability of the economic great powers to substitute governance structures as a means of advancing their common preferences. Because financial regulation produces a cleavage of interests between the developed and developing states, the developed great powers have relied on club organizations and forum-shopping among substitutable governance structures to create new modes of coordination. This argument is demonstrated by reviewing the development of new financial codes and standards in the wake of the Mexican and Asian financial crises.

(Henry Farrell is scheduled to present two papers, but they're not online yet.)

[Eugene Volokh,
8/18/2003 11:53:41 AM]Interesting scandal involving the Mississippi Supreme Court:Scipio, fresh from a good day's work at Zama, now takes on the Missippi Supreme Court. I haven't heard anything else about it, and don't know what other views on this there might be (Scipio says "There's the summary, filled with both fact and vitriol. I'll be keeping you posted, fair readers."). Still, it seems like quite a juicy story, and I thought I'd point people to it. There are more posts about this on Scipio's Vast-Right Wing Conspiracy blog.

[Randy Barnett,
8/18/2003 10:56:42 AM]Will the Federalism Revolution Cut Both Ways? The OCBC case that I will be arguing today in a moot court at Santa Clara Law School (in preparation for our September 17th hearing before the Ninth Circuit), raises three significant constitutional issues (you can read the briefs here):

1. Has the government exceeded its powers under the Commerce Clause by trying to prohibit the wholly intrastate acquisition, use, and distribution of medical cannabis that is lawful under California state law--without any showing that this class substantially affects interstate commerce?

2. Does the injunction in OCBC improperly interfere with the police power of the State of California to protect the health and safety of its citizens--a power that the national government lacks. The police power includes the power to say YES as well as NO, with respect to activities that take place wholly within its borders and that do not interfere with interstate commerce?

3. Does the injunction violate the fundamental rights of the OCBC members to ameliorate unnecessary pain and suffering and to consult and follow the recommendations of their physicians?

Ultimately, if we prevail in the Ninth Circuit, this will put the conservatives on the Supreme Court to the test: is their federalism revival applicable to issues of policy where they may strongly disapprove with what the states are doing? Does the federalism door swing both ways?

In U.S. McCoy, Judge Reinhardt, the pariah of the Supreme Court conservatives, wrote an extremely well-reasoned federalism opinion applying US. v. Lopez and especially US v. Morrison to the issue of child pornography where no economic activity of any kind was involved. Everyone interested in federalism should read this case.

Over at Pedantry, Scott has posted the first part of what promises to be an epic three-part review essay. It's interesting stuff. I'll note that it's perfectly true that the volume does not have any contributions from linguists or sociolinguists other than Stephen May. The purpose of the book is, quite explicitly, to introduce normative political theoretical analysis to a topic that is, after all, very widely written about by linguists and sociolinguists. Joshua Fishman and his students have been at it for a very long time, and they know many things we don't. They've also been known to throw around some pretty sloppy normative-policy claims, and to ally uncritically with language preservationism as a cause with little attention to either what its costs are or to the surrounding structure of ethnic politics. By contrast, the normative-theory literature on ethnicity and multiculturalism hasn't yet paid much attention to language as a distinct phenomenon. The book is an introductory attempt to remedy both problems. It's certainly not meant as a replacement for the study of sociolinguistics.

I'm looking forward to seeing parts 2 and 3...

[Eugene Volokh,
8/18/2003 10:11:48 AM]Interesting phenomenon: My friend Haym Hirsh passed along the following. I tried it, and found that this happens to me (though I realize that it might not be universal). I do not vouch for the neurological explanation (the "same side of our brain" theory), only for the phenomenon:

Proof that the same side of our brain cannot do 2 different things at once...

While sitting at your desk make clockwise circles with your right foot.

While doing this, draw the number "6" in the air with your right hand.

Your foot will change direction.

UPDATE: Reader Benjamin Philip, a graduate student in the Brown University Department of Neuroscience writes,

I have an explanation for the hand/foot rotating phenomenon you posted about this morning. . . .

As you seem to have guessed, the side of the brain has nothing to do with it. Rather, the issue is in the spinal cord. There are a few major descending control tracts (I believe the one in question is the lateral corticospinal tract), and "central pattern generators" are a major feature of how they work. The rotating motion involved in tracing a circle probably comes from one of those pattern generator circuits -- but the key fact is that there would be a single such circuit for the tract on each side of the spinal cord, apparently upstream of both arm and leg. The "rotation generator" circuit in the right lateral corticospinal tract can only be doing one thing at a time -- clockwise or counterclockwise. Since most movement patterns are centrally (usually spinal cord) generated, distinctions between arm and leg can be meaningless.

So, rather than "the same side of our brain cannot do two different things at once", the explanation is that "the same side of the spinal cord cannot do the same thing in two opposite directions at once."

[Jacob Levy,
8/18/2003 09:51:03 AM]Pot calling the kettle department: I'm hardly one to talk, but the following didn't really inspire me to have much confidence in the Draft-Wesley-Clark movement:

Retired Army Gen. Wesley Clark said yesterday that he had found an "enormous hunger for leadership" as he toured the country, contemplating whether he should run for the Democratic presidential nomination.

"Sometime in the next two or three weeks, I'll continue to move toward closure," he said on CNN's "Late Edition."

But his supporters are not waiting that long. Clark is starring in -- and is the target of -- a new television ad campaign slated to begin running today in three states.

The ads, sponsored by the group DraftWesleyClark.com, one of several groups trying to lure him into next year's race, will run in Iowa and New Hampshire, along with Clark's home state of Arkansas.

"It's almost like three-level chess on 'Star Trek,' " said John Hlinko, co-founder of the Washington-based group. "On the one hand, he definitely is the key target constituent. On the other hand, we also fully recognize that if he is going to enter . . . we want to continue building a base of supporters."

I can't cast stones either in the geeky-similes glasshouse or in that of political movements whose public face isn't quite all one would wish. (I used to be a paid member of a political party whose public face was, in one state, blue, and that has a much higher-than-usual association with science fiction fandom.) But still. When the frickin' Washington Post calls, one at least strives to create the impression of political seriousness and sophistication.

[Randy Barnett,
8/18/2003 09:24:41 AM]Update on OCBC Medical Cannabis case: The oral argument for the OCBC medical cannabis case before the Ninth Circuit has been scheduled for September 17th. I am in San Jose today for a moot court at Santa Clara Law School to prepare for the argument.

[Jacob Levy,
8/18/2003 08:44:43 AM]Political science papers online: There's been some occasional blogospheric talkabout the lack of a political science equivalent to the SSRN. It's not really the same kind of thing as the SSRN, but the website with [most of] the papers that will be presented at the APSA annual meeting in Philadelphia in two weeks is now up. I don't much like the changes they've made to the interface (look here for last year's equivalent) but this is the place to look for what's newest and most representative of research in political science and political theory. (Do remember, though, that the papers are at a much earlier stage than are the papers at the SSRN. Many of them come with "do not cite" disclaimers.) I think I'll probably do some Lawrence Solum-style highlights-blogging over the next couple of weeks, as I go through the papers.

On Aug. 8, Gerald A. Reynolds, assistant secretary of the Office for Civil Rights of the U.S. Department of Education, issued the most important statement on freedom of speech at American universities since the 1950s McCarthy era. Mr. Reynolds sent a letter to universities nationwide, clarifying that "OCR's regulations and policies do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights protected under the First Amendment."

My op-ed on the matter is up at the Washington Times's website. I assume that the print version, unlike the website version, retains the piece's paragraph breaks (My eyes are allergic to newsprint and I haven't read a hard copy of a newspaper for a decade).

I don't disagree with Eugene's commentary on the same issue, but I think it's worth accentuating the positive here, especially because it's the Office for Civil Rights of the DOE that had been keeping public university speech codes on life support for the last few years, despite a series of rulings finding them unconstitutional.

[Tyler Cowen,
8/18/2003 07:00:24 AM]Is outsourcing a big economic problem for America? The Washington Times ran two good pieces today on outsourcing, foreign investment, and whether America is losing jobs to other countries. The first, by Daniel Griswold of Cato, took on Paul Craig Roberts, apparently a recent convert to protectionism.

Here is one point: "...94 percent of outward U.S. foreign direct manufacturing investment in 2001 flowed to other rich countries. If low wages drive investment, how does Mr. Roberts explain the fact that, during the past decade, the United States has been a net recipient of an annual average of $20 billion in foreign manufacturing investment?"

Or: "The United States today accounts for a steady 12 percent of global exports, the same share as two decades ago, and three times China's share...There is nothing alarming about the fact that Americans spend 1 percent of our income on products made by the one-fifth of mankind that lives in Mainland China."

Bruce Bartlett notes that American manufacturing productivity remains high by the relevant measures. Most major countries (except Canada and Italy), not just the United States, have experienced declines in manufacturing employment. In fact when output is strong, and employment declines, this is a sign that productivity per worker is high.

[Eugene Volokh,
8/18/2003 06:59:39 AM]"PRO NRA" license plate: An acquaintance of mine passed along an interesting story: In August 2002, the New York State Department of Motor Vehicles refused to give Hector Sanchez the personalized license plate that he chose -- "PRO NRA." The plate, they said, fell into the category of "Obscene, Lewd, Lascivious, and Derogatory to a particular ethnic group or patently offensive." (I have a fax of their letter in front of me.)

Fortunately, attorney Dan Zavadil (supported by the NRA Civil Rights Defense Fund) wrote the New York DMV a letter pointing out that none of these categories applied, and persuaded the DMV to change its position..

The constitutional question here, by the way -- is the content of a personalized license plate a nonpublic forum, where the government may not discriminate based on viewpoint, or is it the government's own speech, over which the government has nearly unlimited authority? -- is nontrivial. All the cases that I've found have concluded that the government may not refuse a proposed license plate based on viewpoint, though it may discriminate based on content if it does so in a viewpoint-neutral way. I think this is probably right, though the "government speech" position is a defensible one, too. (Note, incidentally, that the question of customized license plate designs, which some states allow for groups that promise to deliver at least some number of buyers, is potentially different.)

But in any event, even if the DMV had the constitutional power to reject a "PRO NRA" plate, its decision to treat this political message as "patently offensive" would still be intolerant, and worth condemning.

[David Bernstein,
8/18/2003 06:48:58 AM]﻿Something to consider if you are considering writing a book for a university press: In March 2001, Duke University Press published my book, Only One Place of Redress: African Americans, Labor Regulations and the Courts from Reconstruction to the New Deal. The initial press run was 1,500 copies. All told, about 1,100 copies have been sold so far. Laissez-faire Books, a cataloguer specializing in books with libertarian themes, bought approximately 300 copies. Libraries bought approximately 400 copies. Several professors have assigned the book in their classes. Figure 100 copies overall for classroom use. Thus, about 300 "other people"(people who are not librarians, LFB customers, or students assigned the book) have bought the book.

Is this a low figure? I think so. The book has been about as widely reviewed as one could hope. It has been reviewed (mostly favorably, despite taking on some sacred cows) in the leading history journals (Reviews in American History, Journal of American History, American Historical Review, Journal of Southern History), major economics journals (including Journal of Economic History), major law reviews (University of Michigan Law Review, Harvard Law Review, Law and History Review), and major policy journals (American Enterprise, The Public Interest), along with on-line journals (Law and Politics Book Review, Econhist, H-Law), and quite a few smaller-circulation journals. The Cato Institute held a book forum for the book, with 3,500 invitations sent advertising the book. I did some publicity of my own, including setting up a home page for the book. Even a few bloggers have plugged it. Nevertheless, a grand total of 300 or so purchasers from all this publicity.

The book is definitely an academic book, but given the general level of interest in race and economic liberty issues not one that is inherently unsaleable to a somewhat broader audience. But the also has two major marketability problems. First, as is typical for university press books, it is priced much higher than commercial press books, listing at $40+ for a relatively short book. Commercial publishers seem to think that book buyers will spend between 22 and 30 dollars for a hardcover book. Second, the book does not appear in book stores. Despite Amazon and whatnot, the vast majority of books are sold in book stores, with another large fraction through book clubs, and neither market was penetrated by the book.

So should you publish with an academic press? Not if you want to sell a lot of books (though a few presses like Oxford and Harvard do get many of their books into larger book stores and get some of their books reviewed in venues like the New York Times, and simultaneous publication in paperback undoubtedly helps sales, not least for classroom adoptions). On the other hand, I surmise that the book would likely have received many fewer reviews had it not been published by a good university press. And the reviews, even the unfriendly ones, generally summarize the book's thesis accurately, spreading the ideas in the book well beyond those who actually buy the book, or even bother to borrow it from their university library. Finally, since many scholars only read articles and reviews in their own discipline's journals, if your work is interdisciplinary, publishing a book, as opposed to just writing articles, is essential to getting those in other disciplines to pay attention to your ideas.

P.S. The humanities scholars out there are no doubt thinking to themselves, "Of course you want to publish with a good university press; it's necessary for tenure at many school, looks great on the c.v., etc." But in the legal academy, at least, there has traditionally been no particular advantage to publishing books--absurdly, my forthcoming pieces in the student-edited Georgetown, Michigan, and Texas law reviews taken together probably look more impressive on my c.v. to law professors than does my book--and a book from a university press is not necessarily looked upon more favorably than a book from a commercial press. Moreover, independent scholars sometimes have a choice between university presses and commercial presses.

Sunday, August 17, 2003

"There is total ignorance about Iraqi culture among the soldiers," said the Turkish government official. "In many cases, the soldiers don't even know where they are, what city they're next to, what distinguishes Shi'ites from Sunnis, how women are to be treated, or what they're supposed to look for."

This isn't the first time I've read that U.S. soldiers seem ill-prepared for their current tasks in Iraq. Why did the U.S. spend so much time and energy planning a brilliant military campaign for the Iraq War, but apparently so little time and energy preparing its forces to handle the occupation?

The bottom line is this: the Federal Energy Regulatory Commission has been backing a plan to overhaul American power grids. Under the proposal, regional transmission organizations would control the flow of power across state lines, taking authority away from state regulators and the major electric utilities. So if one part of the country needed more power, these authorities presumably would work to insure its delivery from other regions. And more would be invested in overhauling the grid and expanding its capacity.

Here is one “money quote” from the article: “…since the beginning of electricity deregulation in 1992, the transactions moving power over long-distance high-voltage lines have shot up 400 percent, creating dangerous congestion at various bottlenecks…”

This same power grid evolved on a state-by-state basis, and was never intended to serve as a national “superhighway” for electricity.

Proposal opponents include many Senate Republicans and now the Bush Administration. States in the southeast and northwest, which have relatively stable power supplies, fear the plan would force them to share their power, raising prices. These critics also charge that tying more states together will cause a greater spread of blackout problems. The more cynical say that the power-sharing plan would introduce greater competition into many states, thus the opposition from (some) regional utilities.

Here is another money quote: “The last major investment in the nation’s transmission lines was in the 1950s…”

Industry sources say that the system needs $50 to $100 billion in new investment.

Oh, yes, and did I mention: The major electric utilities spent $260 million lobbying the government over 1999-2002, and $40 million on campaign contributions.